Gupta Vs. Kiran Girhotra & Ors  Insc 1027 (9 October 2007)
Sinha & Harjit Singh Bedi
W I T
H CONTEMPT PETITION NO. 270 OF 2007 [Arising out of S.L.P. (Civil) No. 6795 of
2007] S.B. SINHA, J :
question as to whether a purchaser of a property belonging to the deceased
testator should be impleaded as a party in a probate proceedings is the
question involved in this appeal which arises out of judgments and orders dated
31.08.2006 in C.M. (Main) No. 285 of 2005 and 13.11.2006 passed in Review
Petition No. 393 of 2006 by a learned Single Judge of the Delhi High Court.
property in question admittedly belonged to one Har Bhagwan.
died on 03.11.1997. He was survived by his wife, four daughters and two sons.
Respondents herein are daughters of the said Har Bhagwan. One of the sons of Har
Bhagwan was Raj Kumar. Wife of Har Bhagwan has passed away. Allegedly, another
son of Har Bhagwan was given in adoption.
Bhagwan executed a Will on 09.09.1997. Respondents herein are the beneficiaries
thereof. They filed an application for grant of probate in the year 2000. Both
the sons of Har Bhagwan filed objections thereto. Raj Kumar propounded another
Will of the said Har Bhagwan which was allegedly executed on 30.10.1997.
Indisputably, Raj Kumar executed two deeds of sale dated 20.06.2003 and
27.06.2003 in favour of one Amit Pahwa. The properties purported to have been
transferred by reason of the said deeds of sale forming subject-matter of the
grant under the Will. No probate was obtained in respect of the said Will dated
30.10.1997. Even no objection from other legal heirs of the late Har Bhagwan
after execution of the said deeds, the said Amit Pahwa entered into an
agreement to sell dated 25.07.2003 in respect of one of the properties. In
furtherance thereto, a purported deed of sale is said to have been executed in
respect of the other property on 29.08.2003.
Appellant herein filed an application for his impleadment in the said probate
proceedings. It was allowed by an order dated 24.12.2004. By reason of the
impugned judgment, the High Court has reversed the said judgment and order on
an application filed under Article 227 of the Constitution of India by the
Raju Ramachandran, learned Senior Counsel appearing on behalf of the appellant,
in support of the appeal, would submit that the High Court committed a serious
error insofar as it failed to take into consideration that in a proceeding
under the Indian Succession Act, 1925, (for short, the Act) the court
should always make an endeavour to avoid multiplicity of proceedings. It was
contended that the courts power to implead a party, who, strito sensu, may
not be a necessary party is wide. Strong reliance in this behalf has been
placed on a decision in Banwarilal Shriniwas v. Kumari Kusum Bai and Others
[AIR 1973 (MP) 69] as also in Seth Beni Chand (since Dead) Now by L.Rs. v. Smt.
Kamla Kunwar and Others [(1976) 4 SCC 554].
O.P. Khadaria, learned counsel appearing on behalf of Respondent Nos. 1 to 3
and Respondent No. 4, who appeared in person, on the other hand, submitted that
the appellant is not a necessary party to the proceeding and, thus, the
impugned judgment should not be interfered with.
Chapter I of Part IX of the Act provides for grant of Probate and/or Letters of
Administration. A probate can be granted only to an executor appointed by the
Will. Chapter III of the Act provides for revocation or annulment for just
cause. Illustration appended to Section 263 of the Act reads as under :
The Court by which the grant was made had no jurisdiction.
The grant was made without citing parties who ought to have been cited.
The will of which probate was obtained was forged or revoked.
obtained letters of administration to the estate of B, as his widow, but it has
since transpired that she was never married to him.
has been taken administration to the estate of B as if he had died intestate,
but a will has since been discovered.
Since probate was granted, a latter will has been discovered.
Since probate was granted, a codicil has been discovered which revokes or adds
to the appointment of executors under the will.
The person to whom probate was, or letters of administration were, granted has
subsequently become of unsound mind.
for revocation of grant if made without citing parties who ought to have been
Section 283 of the Act provides for the powers of the District Judge to grant
probate, which is in the following terms :
Power of District Judge.-
all cases the District judge or District Delegate may, if he thinks proper, -
the petitioner in person, upon oath;
further evidence of the due execution of the will or the right of the
petitioner to the letters of administration, as the case may be;
citations calling upon all persons claiming to have any interest in the estate
of the deceased to come and see the proceedings before the grant of probate or
letters of administration.
The citation shall be fixed up in some conspicuous part of the court-house, and
also the office of the Collector of the district and otherwise published or
made known in such manner as the Judge or District Delegate issuing the same
Where any portion of the assets has been stated by the petitioner to be situate
within the jurisdiction of a District Judge in another State, the District
Judge issuing the same shall cause a copy of the citation to be sent to such
other District Judge, who shall publish the same in the same manner as if it
were a citation issued by himself, and shall certify such publication to the
District Judge who issued the citation..
Section 307(1) of the Act provides for power of the Executor or Administrator
to dispose of property in the following terms :
Power of executor or administrator to dispose of property.-
Subject to the provisions of sub-section (2), an executor or administrator has
power to dispose of the property of the deceased, vested in him under section
211, either wholly or in part, in such manner as he may think fit.
Sons of late Har Bhagwan had entered Caveats. Their objections would be considered
in the probate proceedings. Raj Kumar is not only opposing grant of probate in favour
of the respondents herein in respect of the Will date 09.09.1997; but he
himself is said to be claiming under a Will executed by Late Har Bhagwan on
transferee of a property during the pendency of a proceeding is not a necessary
party. Citations are necessary to be made to only of those who, inter alia,
claim through or under the Will or deny or dispute the execution thereof.
The High Court in its impugned judgment has noticed that the attesting
witnesses of the Will had already been examined. If the appellant herein is impleaded
as a party, the clock would be put back. Before the High Court as also before
us, arguments have been advanced in regard to conduct of the appellant as also
the fact that they are only speculators who had purchased litigated properties.
But we may not go thereinto.
Banwarilal Shriniwvas (supra) whereupon Mr. Ramachandran has placed reliance,
the High Court was considering the case of a purchaser in a proceeding under
Section 263 of the Act.
Kumar evidently was aware of the proceedings. If a proceeding had been
initiated for grant of probate, the appellant and/or his predecessor, Shri Amit
Pahwa would be deemed to have notice thereof.
Citation, as is well-known, should be conspicuously displayed on a notice
board. Before purchasing the properties, Amit Pahwa and consequently the
appellant had taken a calculated risk. In a situation of this nature, he is not
a necessary party. He took the risk of the result of the probate proceedings.
His apprehension that Raj Kumar may not take any interest in the litigation
cannot by itself a ground for interfering with the impugned judgment. It is
speculative in nature.
Seth Beni Chand (supra), whereupon reliance
has been placed by Mr. Ramachandran, this Court was considering an argument as
to whether alienees of properties are entitled to citation in probate
proceedings. This Court proceeded on the assumption that Banwarilal Shrinivas
(supra) lays down the correct law. But even therein a distinction was made
stating that the alienee was a transferee pendent lite. The said decision,
therefore, is an authority for the proposition that no citation need be issued
to any person who had no right to the property prior to the commencement of the
probate proceedings. This Court in no uncertain term opined that the alienees
had no right to be heard in the appeal The said decision, therefore, runs
counter to the submission of Mr. Ramachandran.
may notice that a Division Bench of the Delhi High Court in Indian Associates
v. Shivendra Bahadur Singh & Others [104 (2003) DLT 820], opined that the
court must be satisfied in regard to the execution of the Will. It is not concerned
with any other arrangement. It was held :
The respondent on the other hand have tried to distinguish the cases relied
upon by the appellant by contending that all those were cases where, certain
persons were allowed to intervene or were impleaded but all were cases of
family members and as such as the appellant-herein, could apply to be made a
party in probate proceedings.
During the hearing of the matter, we drew the attention of both the parties to
the provisions of Section 307 of the Succession Act, which made the permission
of the court to be mandatory for purposes of transfer of property by an
administrator. Both the parties were heard on this aspect.
Even otherwise ordinarily a transferee pendent lite without leave of the court
cannot be impleaded as a party. [See Bibi Zubaida Khatoon v. Nabi Hassan Saheb
and Another (2004) 1 SCC 191].
Furthermore, the plaintiff in the suit is the dominus litis. If he intends to
take a calculated risk in the matter, the court may not exercise its
discretionary jurisdiction. [See Kasturi v. Iyyamerumal and Others (2005) 6 SCC
733 Para 18 and Dhannalal v. Kalawatibai & Others (2002) 6 SCC 16 Para
For the reasons aforementioned, we do not find any merit in this appeal, which
is dismissed accordingly with costs. Counsels fee assessed at Rs.
view of the aforementioned judgment and order, no orders are necessary to be
passed in the contempt petition.